If you suffered car accident injuries, you might be unsure if you should file a personal injury lawsuit or negotiate a claim settlement. You might not even know what’s the difference?
In this article, we’ll dig into this question thoroughly to help you decide which makes sense for you to receive the maximum insurance settlement.
We’ll discuss…
What is the Difference Between a Lawsuit and a Claim?
What Does it Cost To Sue?
Do You Meet the Requirements?
How Strong is Your Case?
What Settlement Amount Do You Want?
Are There Alternatives to Filing a Lawsuit?
How Long Do You Have to File?
Let’s get started…
Table of Contents
What is the Difference Between a Lawsuit and Claim?
You might have heard the terms “lawsuit and “claim” used interchangeably. You might have even come to the conclusion they mean roughly the same thing. They don’t, and there are important differences.
Personal injury claim — Is usually the first step before a lawsuit is considered. It involves you and the other driver’s insurance company negotiating an accident settlement amount you think is fair. This is typically done without an attorney or visiting a court.
Personal injury lawsuit — In this situation you (and your attorney) sue the other driver’s insurance company and take them to court to be compensated for your accident injuries. This typically happens if you are unhappy with the way an insurance claim is going, received low settlement offer, your claim is denied etc.
What Does it Cost To Sue?
Going through a claim is typically much smoother than a filing a lawsuit.
So before you file one you should pause and consider what will be required both in terms of financial and emotional costs.
Lawsuits require time, money up front for attorneys, and can drag on for months or even years.
Lawyer fees are notoriously expensive. Here a few specifics payments you might have to pay:
- Fees for filing
- Cost to have the other party served
- Cost for the court reporter, transcriptions, etc
- Copying records
- Expert testimony
We’ve written a whole separate article on lawyer and legal fees you may end up paying.
You should also factor in that If you goe to trial you will also be at the whim of a jury. Many times juries are unpredictable and this may work against you if your case is not strong enough.
The car accident trial process can also be quite stressful. People can get very charged up about being vindicated, punishing the party at fault, and getting justice. The whole process can be emotionally and mentally draining not just on you but on your family.
So, give careful consideration to what will be required from you in order to be compensated.
Do You Meet The Requirements?
Not everyone is able to file an accident lawsuit if they are injured.
In many states, there is a threshold for what is considered a “serious injury”. Meeting this standard usually means a substantial injury that is either permanent or has some temporarily disabling effects. Examples include :
- Traumatic brain damage
- Broken bones or compound fractures
- Spinal cord injury
- Amputation(s)
- Burns
- Damage to vital organs
- Medically certified impairment that restricts you from work or normal daily functioning
In addition to this, if you live in a no-fault state filing one might not even be an option unless a dollar threshold is breached or extenuating circumstances exist.
If you live in a state that does not mean the threshold, you should consider accepting the settlement offer or getting a free consultation with an attorney to discuss your options.
How Strong is Your Your Case?
Most people will not know the answer to this question without the help of a accident lawyer. You should speak with your attorney and ask the following questions :
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- How were similar cases handled?
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- What are average settlements for similar injuries?
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- What are the odds of winning at trial?
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- What are some challenges to winning ?
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- What are biggest strengths and weaknesses about the case?
Asking these questions will give a more complete picture of whether to file a lawsuit or negotiate your accident claim.
The next thing you will need to consider is…
What Settlement Amount Do You Want?
At the end of the day you are considering suing because you assume you will get a higher settlement amount than if you accepted the settlement check from the accident claim.
To answer this you should discuss with your attorney the following questions:
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- What is a reasonable range of settlement amount you can get at trial or pretrial?
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- What is the minimum amount you’re willing to accept?
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- What are the other party’s resource and assets? Can they even afford to pay your settlement?
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- What are the insurance policy limits that may affect your settlement amount?
Answering these questions will help you assess what’s a realistic settlement amount you can receive if you choose to sue the insurance company. This way you can decide if it’s worth pursuing a lawsuit.
Are There Alternatives?
There is a middle ground between filing a claim and lawsuit known as arbitration. An arbitration can occur after negotiations with the insurance company fail but before you decide to file a lawsuit.
In this process, both you and the insurance company decide to present your claim to third party , called an arbitrator. The arbitrator will listen to arguments from both sides and decide your settlement amount.
In most situation, the arbitrator’s decision is final and you cannot seek further damages.
Why would you chose to do an arbitration? For most people it is usually simpler and less stressful than pursuing a lawsuit. It costs less and takes significantly less time. In some arbitrations you are even guaranteed to receive a minimum settlement amount.
How Long Do You Have to file?
Each state has a specific time limit within to file your lawsuit known as Statute of Limitations. The time period varies state to state. However, most states have a 2 to 3 year window from the start date of your accident.
Summary
Deciding between filing a lawsuit or negotiating an accident claim can be a tough decision.
Just remember the following main points:
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- The key difference is that a lawsuit is an official legal proceeding that takes place in court whereas a claim is between you and the insurance company with the law playing a smaller role.
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- Your injuries may need to meet a “serious injury threshold” to qualify.
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- The lawsuit process can be expensive and time consuming.
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- Discuss with your attorney strength of your case and settlement amounts of similar cases.
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- Arbitration can be an alternative middle ground option
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- Consult with an attorney to decide your best option
Sources
1 – http://www.iii.org/issue-update/no-fault-auto-insurance
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